EXPERT TESTIMONY

A testimony is an assertion made by someone who has experience or knowledge of a particular

matter. The testimony is given by the witness.

A witness is a person giving sworn evidence to a tribunal or court of law. There are basically two
types of witness:

-Witnesses of Fact who may give evidence of fact but may not normally give opinions;

-Expert Witnesses who may give opinion evidence within their expertise and in addition
evidence of facts.

INTRODUCTION

Expert testimony is presented in legal proceedings when a judge or jury needs assistance
evaluating a material fact in a court proceeding. A person is qualified to testify as an expert if
he has special knowledge, skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.

In common law systems, expert testimony is usually proffered by one of the parties. The
evidence must be reliable, relevant to the case, more probative than prejudicial, and must
assist the trier of fact to be admissible. The fact finder determines how much weight to accord
the testimony. Although experts in civil law systems are usually court-appointed, their opinions
may not be binding on the judge or judges presiding in the case. The history of empirical trial
simulation research examining the effects of expert testimony on juror judgments is reviewed.
This research shows that adversarial expert testimony (i.e., testimony presented by one side)
influences juror decisions, is more influential when it is explicitly linked to the trial evidence,
and sensitizes jurors to relevant trial evidence. Although people have expressed concerns about
the prejudicial effects of non adversarial or court-appointed expert testimony, jurors do not
seem overly influenced by court-appointed experts. Recent research demonstrates that both
judges and jurors are insensitive to variations in the methodological quality of expert evidence,
which may lead them to make decisions based on flawed evidence.

The primary function of an expert witness is to express his independent expert opinion based
on the information that is provided. An expert can be employed in different capacities for
example at arbitrations, tribunals, and litigation. They help jurors understand complex and
nuanced information, they provide a sense of objectivity and credibility, and they integrate with
the legal team to enhance the strength of the entire case.

AN EXPERT WITNESS WILL:

 Provide an independent expert opinion in their area of expertise on the subject matter in
accordance with the instructions they are given. These instructions will be shown in the
Expert Witness’s Report which will be seen by the other side and the Court.
  Provide the opinion in the form of a report and/or evidence before a Court (or other
tribunal) as required. The report is required as it is not usually possible for the Expert to
give evidence without it.
 Ensure the Expert’s Report provided to you contains the information required by the
Court Rules. If you proceed you will have to give a copy of the report to the other side in
the dispute. At that time a copy of the other side’s Expert’s Report will be given to you.
 Comply with the specific procedure rules applicable and any Court or Tribunal Orders
in the case.
 Provide truthful, impartial and independent opinions whether or not these opinions
favor your case.
 An expert witness has an overriding duty to the Court (or other tribunal). This duty
supersedes any duty owed to you even though you are still responsible for paying the
expert’s fees.
 The Court expects an expert witness to be independent and impartial and will discount
the evidence of one who is or is seen to be partisan.

FOUNDATIONAL TEST

An expert is entitled to give an opinion, but only in the context of his or her expertise, though a
foundational test will have to be met before such testimony is proffered. In the case of a lay
witness, foundational requirements must be laid as follows:

 The witness's testimony is based upon his or her own unique perception.

 The court is convinced that the testimony of the lay witness is helpful in arriving at the
truth.

 The witness does in actuality have an opinion.

 The witness is capable and competent to testify as to that opinion.

 Without the testimony the trier of fact, namely, the judge and jury, would not have the
best case presented.

 The witness is giving lay testimony rather than expert testimony.

 No opinion as to a rule or an interpretation of law will be permitted.

THE INDIAN EVIDENCE ACT, 1872

Law related to expert evidence is mentioned particularly in S.45 to S.51 of Indian Evidence Act
and restricted to the interpretation of these sections only. The general rule is that the opinion
of persons or the beliefs of the witnesses is not admissible in the Court. However, in the course
of time, the law related to expert evidence has been developed with the rapid development of
technology and with the help of judicial decisions.
The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts
or commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered to
when the Court has to form opinion pertaining to:

-foreign law

-science

-identity of handwriting

-finger impressions

In such cases, the Court seeks opinion of skilled persons i.e. experts in the aforementioned fields.
Matters commonly made the subject of such evidence include causes of death, insanity, effects of
poison, genuineness of works of art, value of articles, genuineness of handwriting, proper
navigation of vessels, meaning of trade terms and foreign law. A witness who is qualified to
speak on these matters is called an expert.

Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that,
when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to
identity of handwriting or finger impressions, the opinions upon that point of persons specially
skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger
impressions are relevant facts.1

Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown
that he has made a special study of the subject or acquired a special experience therein or in
other words that he is skilled and has adequate knowledge of the subject.

REQUIREMENTS OF EXPERT EVIDENCE

The Supreme Court delineated the requirements of expert evidence under Section 45 of the
Evidence Act.2 The Court stated that the first and foremost requirement for an expert evidence
to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is
outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert
opinion where there is a medical issue that needs to be settled.

The scientific question involved is assumed to be not within the court’s knowledge. Thus cases
where the science involved, is highly specialized and perhaps even esoteric, the central role of
expert cannot be disputed. The other requirements for the admissibility of expert evidence are:

 that the expert must be within a recognized field of expertise

1
State of H.P. v. Jai Lal and Ors. 1999 7 SCC 280
2
Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors 2009 INSC 1569
  that the evidence must be based on reliable principles, and

 that the expert must be qualified in that discipline.

EVIDENTIARY VALUE OF EXPERT OPINION

A Court is not bound by the evidence of the experts which is to a large extent advisory in
nature. The Court must derive its own conclusion upon considering the opinion of the experts
which may be adduced by both sides, cautiously, and upon taking into consideration the
authorities on the point on which he deposes.3

Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The
Court has to evaluate the same like any other evidence. The reasons in support of the opinion,
if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for
the court to judge whether the opinion has been correctly reached on the data available and
for the reasons stated.4 Hence, from the judicial pronouncements it can be inferred that expert
evidence or opinion is not cogent or conclusive evidence and to make it stronger evidence in a
case it has to be supported by reasons and relevant data.

Thus, no expert can claim that he could be absolutely sure that his opinion was correct, expert
depends to a great extent upon the materials put before him and the nature of question put to
him.

CONCLUSION

Expert witness testimony can truly change the outcome of certain cases. Experts can offer
information that can help strengthen the case for either the prosecution or the defense,
depending on the kind of experts they are. However, just because an expert provides
testimony, that doesn’t automatically guarantee a positive outcome for the side that called the
witness. Some experts may provide testimony that seems weak or otherwise like they would
say anything just for a paycheck.

The main point of expert witness testimony is for the expert to teach the jury about a difficult
topic of which he has superior knowledge. This means that the expert must break down all of
the jargon and industry speak so that it is easier for the jury – and everyone else – to
understand. The expert must be able to communicate in a way that is not so technical.
Miscommunication has been many an expert witness’ downfall because it is sometimes difficult
to explain a concept that they otherwise know so well.

3
Malay Kumar Ganguly v. Sukumar Mukherjee 2009 9 SCC 221
4
State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133
Evidence of an expert is not a substantive piece of evidence. The courts do not consider it
conclusive. Without independent and reliable corroboration it may have no value in the eye of
law. Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert
and becomes the opinion of the court.